THE INDUSTRIAL TRIBUNALS  

CASE REFS:    253/12
254/12
255/12
257/12

CLAIMANTS:	1.	Michael Crossen
	2.	David Brazier
	3.	Michael Savage
	4.	Paul Toal

RESPONDENT:	Northstone (NI) Ltd

DECISION

1.	The claim made by Mr Savage is withdrawn and is dismissed.

2.	The tribunal finds that the respondent made unlawful deductions from the remaining claimants’ wages and consequently the following awards are made:-

	Michael Crossen:	£61.00
	David Brazier:	£75.00
	Paul Toal:	£43.00

Constitution of Tribunal:

Chairman  (Sitting alone):	Mr H Travers

Appearances:

The claimants were represented by Mr Gillam, Solicitor of Donnelly and Kinder Solicitors.

The respondent was represented by Mr Doherty, Barrister-at-Law, instructed by Tughans Solicitors.

REASONS

Issues

1.	At the outset of the hearing, the parties presented the following as the agreed issues in the case:-

	(a)	Do the claimants’ contracts of employment contain a term which permits the respondent to lay them off in inclement weather?

	(b)	Can such a term be implied into the contract by custom and practice?

	(c)	If the contract does not contain such a term, has the contract been varied to permit the respondent to lay off the claimants in inclement weather?  The respondent accepted that there was no written consent to a variation in such terms but submitted that the claimants were notified of the respondent’s proposed variation and consented to the variation by continuing to work.

2.	An additional issue raised by the respondent was abandoned by it during the course of the hearing namely, whether or not a Working Rules Agreement had been incorporated into the claimants’ contracts of employment. 

3.	The claim on behalf of Michael Savage was withdrawn and consequently falls to be dismissed.

Facts

4.	The following facts were agreed:-

	(a)	The claimants are employed as boatmen/skippers on the respondent’s dredger barges which operate on Lough Neagh.

	(b)	The claimants were issued with a statement of particulars of terms of employment pursuant to the Contracts of Employment and Redundancy Payments Act NI 1965.

	(c)	David Brazier signed same in June 1994, Michael Crossen in May 1995 and Mr Toal signed in January 1992, confirming his service from July 1979.

	(d)	Prior to the events narrated in the originating application and response, the claimants had not previously been laid off as a result of inclement weather in their employment history.  Upon days when sailing was either impossible or unsafe, the claimant(s) would undertake work at the respondent’s depots as directed by the respondent and provided for in the claimant’s terms and conditions.

	(e)	Bonus negotiations were undertaken with the claimants’ representative and a document entitled Lough Wages Summary was applied to those in the Lough Squad.  The last of such meetings occurred in September 2003.

	(f)	In December 2010 the claimants received a letter from G McQuillan, Managing Director, advising that the company will no longer be in a position to provide alternative work for those employees affected by excessively cold weather and they would be laid off.  The letter invited the claimants to raise concerns with their director responsible.

	(g)	The claimants did not object to same nor did they raise any query.

	(h)	The claimants were never laid off as a result of excessively cold weather and have not been to date.

	(i)	In June 2011, a further letter was received from the respondent which stated that from 13 June 2011 we will no longer be in a position to provide alternative work for any employee who cannot perform his or her normal work activities due to adverse weather of any description and those affected would be laid off.  The letter invited the claimants to raise concerns with their director responsible.

	(j)	The claimants did not object to same nor did they raise any query.

	(k)	The claimants were prevented from sailing due to adverse weather on 17 June 2011.  No lay off was imposed as the respondent found meaningful work for them.

	(l)	The claimants were prevented from sailing due to adverse weather on a number of occasions from June until November 2011 and no lay off was imposed as the respondent found meaningful alternative work for them.

	(m)	Some 18 weeks after the letter of June 2011, at a meeting on 17 October 2011 at the conclusion of a meeting on other matters, Brian Thompson of the respondent company, advised the claimants that the company was going to enforce the proposed arrangement as set out in the correspondence of both December 2010 and June 2011.

	(n)	The claimants raised a grievance on 28 October 2011 stating, inter alia,

			We believe that your proposal not to pay us when there is no sailing is a unilateral variation to our terms and conditions which we do not accept.  Further any deduction from wages as a result of any such decision may amount to an unlawful deduction from wages and/or breach of contract.

	(o)	The claimants were sent home on 2 November and 28 November as a result of inclement weather.  The loss as a result is agreed as being £61.00 in respect of Mr Crossen, £75.00 for Mr Brazier and £43.00 for Mr Toal.

	(p)	The matter was the subject of a grievance hearing and appeal:  however the parties retained their respective positions.

5.	The respondent did not require to cross-examine each of the claimants consequently the tribunal heard evidence only from Mr Crossen on their behalf.  The respondent called its production director Mr Thompson, and its human resources manager Mr McQuillan.  A bundle of documents was provided to the tribunal and referred to by both parties during the course of the hearing.

6.	Due to a change in corporate structure, in 2004 the claimants’ employer ceased to be Farrans Limited and became the respondent, Northstone (NI) Ltd.  The respondent produced copies of documents headed, “Statement of Particulars of Employment for Hourly Paid Employees”, one from Farrans Limited dated March 1999, the other from Northstone (NI) Limited which dated from 2005.  Each of those statements of particulars contained a similarly worded provision relating to layoffs:  “The company reserves the right to lay-off employees when, in its reasonable opinion, the level, nature or location of its work makes it necessary.”  The words, “Full consultation will take place” were added in the Farrans Limited version.

7.	Mr Crossen has no recollection of receiving a copy of either of the documents.  The respondent has no record that the claimants were ever given a copy of either document.  Mr McQuillan accepted that he could not say for certain that copies of either document had been sent to any of the claimants.  His own employment with the respondent commenced in 2006.  Mr McQuillan’s understanding was that copies of the documents would have been hand delivered by way of the manager who delivers the wage slips but Mr McQuillan told the tribunal that he was unable to find any record of either the 1999 or 2005 version of the statement of particulars having been sent out.  In his search of the respondent’s records Mr McQuillan was unable to find a copy of any covering letter which might have accompanied either version of the statement of particulars if it had been sent to employees. 

8.	The claimants had been temporarily laid off for two months in or around January/February 2009.  The downturn in the economy was the reason for that 
lay-off.  The respondent was producing more sand than it could sell, its stock was full and there was no more room to store the sand.  Mr Crossen said that he and his colleagues had accepted the lay-off because work wasn’t plentiful for the company and they could see that the respondent had more stock than was needed at that time.  He said that they had been given notice of that lay-off and they could plan and budget for it.  Mr Crossen said that he was not aware of the concept of a lay-off prior to January 2009.

9.	Mr Crossen told the tribunal that no objection was raised to the contents of the letters dated December 2010 and June 2011 referred to at paragraph 4 above because he and his colleagues regarded them as general letters which were not directed at them specifically.  As soon as they realised at the meeting on 17 October 2011 that the letters did apply to them, they took steps to raise a grievance.  Mr Crossen said that from December 2010 until 17 October 2011 he and his colleagues did not object to weather lay-offs because, “there was nothing to object to, we were paid as normal”.

Law

10.	Express terms of the contract are those that the parties specifically deal with and agree upon.  They may be contained in a document.

11.	In respect of the implication of a term into a contract by way of custom and practice, the respondent’s counsel relies on paragraph 35 of Harvey on Industrial Relations and Employment Law which includes the following:-

		“…where the custom and practice is confined to a particular establishment, the custom must be proved, but if it is proved, it apparently does not matter that the individual concerned was unaware of the custom.  If 'everybody knows' then he ought to know too; and it is his own fault if he does not.  The other party will reasonably have assumed that he does know, and therefore he is bound by the custom.  It follows however that the court will not lightly find a custom.  The custom asserted must be (in the traditional phrase) 'reasonable, notorious and certain': reasonable, in the sense of fair (Devonald v Rosser & Sons [1906] 2 KB 728); notorious, in the sense of well known—perhaps not universal, but at least the general rule rather than the exception (Ropner & Co v Stoate Hosegood & Co (1905) 92 LT 328); certain, in the sense of precise: Devonald v Rosser.”

12.	Insofar as variation of the terms of the contract is concerned, the respondent relies on paragraph 84 of Harvey on Industrial Relations and Employment Law which contains the following:-

		“what is needed in contract law for a valid variation is consent/assent somehow; there is no requirement that it be joyful consent /assent and of course UK contract law tends to have little regard for idea of 'good faith' negotiations.  Indeed, references to 'assent' may not just be semantic because employment law has long accepted the idea of assent by acquiescence, ie by lack of objection on the part of the workforce, evidenced by continuing to work on the new terms and conditions; the fact that this may in reality have been because the employees need the work and are 'accepting' unhappily is legally irrelevant.  It is a tough old world out there”.

13.	The claimants’ rely on paragraph 22 of the decision of the Employment Appeal Tribunal in Jones v Associated Tunnelling Co Ltd [1981] IRLR 477.  There the President commented:-

		“If the variation relates to a matter which has immediate practical application (eg, the rate of pay) and the employee continues to work without objection after effect has been given to the variation (eg, his pay packet has been reduced) then obviously he may well be taken to have impliedly agreed.  But where, as in the present case, the variation has no immediate practical effect the position is not the same…it is asking too much of the ordinary employee to require him either to object to an erroneous statement of his terms of employment having no immediate practical impact on him or be taken to have assented to the variation.  So to hold would involve an unrealistic view of the inclination and ability of the ordinary employee to read and fully understand such statements.”

Conclusion

14.	Express term

	The tribunal is unable to find that there was an express term in the claimants’ contracts of employment on the basis of either the 1999 Farrans Limited statement of particulars or the 2005 Northstone (NI) Ltd statement of particulars.  The claimants deny ever having seen the documents prior to this litigation and the respondent has not produced evidence which would enable the tribunal to conclude on the balance of probabilities that the documents had been seen by the claimants. 

15.	Implied term

	The evidence falls far short from that which would be required to persuade the tribunal that a term in respect of lay-offs was implied by custom and practice.  The previous two month lay-off in 2009 fell into an entirely different category.  Prior notice was given of that lay-off which was caused by general trading conditions rather than poor weather on a given day. 

16.	On all previous occasions when weather conditions impeded operations, meaningful alternative work was found for the claimants.  This was the established custom and practice.

17.	Variation

	The tribunal is not satisfied that there was an effective variation of the terms of the contract. 

	Despite the terms of the letters written in December 2010 and June 2011, the respondent did not act on the purported variation of the terms on any one of the number of occasions between December 2010 and October 2011 when adverse weather prevented sailing.

	Prior to 2 November 2011, meaningful alternative work was found for the claimants on such occasions.  By the time that the respondent sought to act on the purported variation, the claimants had already made clear their objections by raising their grievance on 28 October 2011. 

	The grievance was raised as soon as it became clear to the claimants that the respondent intended to act on the purported variation of the contract.  At no time did the claimants acquiesce in any actual reliance by the respondent on the purported variation. 

18.	In the circumstances the tribunal finds that the respondent did make unlawful deductions from the claimants wages.  Consequently the tribunal makes awards in favour of the claimants in the sums agreed between the parties.

19.	This decision is a relevant decision under the Industrial Tribunal (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing:      19 June 2012, Belfast.

Date decision recorded in register and issued to parties: